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Act of Sederunt (Rules of the Court of Session 1994) 1994

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

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(2) A certified copy or extract issued on an application under paragraph (1) shall be supplied free of charge.

Disclosure of information

70.4

Where the court pronounces an interlocutor under section 24A of the Act of 1985¹²² (order to a person to disclose information to the court as to a child’s whereabouts), it may order that person to apear before it or to lodge an affidavit.

Form of applications under this Part

70.5

(1) Subject to rule 70.16 (warrant for intimation on a child), an application for the return of a child under the Hague Convention shall be made by petition and–

(a) shall include averments in relation to–

(i) the identity of the petitioner and the person alleged to have removed or retained the child;

(ii) the identity of the child and his date of birth;

(iii) the whereabouts or suspected whereabouts of the child;

(iv) the date on which the child is alleged to have been wrongfully removed or retained;

(v) the grounds on which the petition is based; and

(vi) any civil cause in dependence before any other court or authority in respect of the child, or any proceedings mentioned in section 9 of the Act of 1985¹²³ relating to the merits of the rights of custody of the child in or before a relevant authority; ...

(b) there shall be produced with the petition and lodged as a production a certified or authorised copy of any relevant decision or agreement; and

(c) there shall be lodged with the petition the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition.

(2) An application for organising or protecting rights of access granted by any court of a contracting party to the Hague Convention, or for securing respect for the conditions to which the exercise of such rights of access is subject shall be made by petition and–

(a) shall include averments in relation to–

(i) the identity of the petitioner;

(ii) the identity of the child and his date of birth;

(iii) the parents or guardians of the child;

(iv) the whereabouts of the child;

(v) the factual and legal grounds on which access is sought; and

(vi) any civil cause in dependence before any other court or authority in respect of the child, or any proceedings mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child in or before a relevant authority; ...

(b) there shall be produced with the petition and lodged as a production a certified copy of any relevant decision or agreement; and

(c) there shall be lodged with the petition the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition.

(3) An application under section 8 of the Act of 1985 (application for declarator that removal or retention of child was wrongful) shall be made by petition and–

(a) shall include averments in relation to–

(i) the identity of the petitioner and of the person who is alleged to have removed or retained the child;

(ii) the identity of the child and his date of birth;

(iii) the whereabouts or suspected whereabouts of the child;

(iv) the date on which the child is alleged to have been wrongfully removed or retained;

(v) the proceedings which gave custody to the petitioner; and

(vi) the proceedings under the Hague Convention in relation to which the petition is necessary; ...

(b) there shall be produced with the petition any relevant document; and

(c) there shall be lodged with the petition the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition.

Period of notice, service of causes and first hearing under this Part

70.6

(1) Subject to rule 14.6(2), the period of notice for lodging answers to a petition to which rule 70.5 applies shall be 4 days.

(2) Subject to rule 70.16 (intimation of notice on child), such a petition , and a copy of any affidavit and documentary evidence lodged with it, shall be served on–

(a) the person alleged to have brought the child into the United Kingdom;

(b) the person with whom the child is presumed to be;

(c) any parent or guardian of the child if he or she is within the United Kingdom, or a relevant territory and not otherwise a party;

(d) the chief executive of the local authority, and for the area in which the child resides and the Principal Reporter; and

(e) any other person who may have an interest in the child.

(3) The first order under rule 14.5 (first order in petitions) in a petition to which rule 70.5 applies shall specify a date within 7 days after the expiry of the period of notice for a first hearing to determine the further progress of the petition.

(4) A respondent shall lodge in process, and send a copy to the petitioner of, the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of his answers to the petition at least 3 days before the first hearing fixed under paragraph (3).

(5) Subject to rule 70.17 (views of the child), at the first hearing fixed under paragraph (3), the court—

(a) shall determine to what extent, if any, further evidence by affidavit is required, by whom and in regard to what matters, and by what date any such affidavit should be lodged;

(b) may, on special cause shown, direct that a particular matter should be the subject of oral evidence in lieu of further, or in addition to, affidavit evidence and by what means such evidence shall be taken; and

(c) may, if no further evidence is required, determine the petition at the first hearing or, if further evidence is required, shall give directions as to the period within which a second hearing shall be held to determine the petition.

Notice of other proceedings

70.7

(1) Where a petition is presented under paragraph (1) of rule 70.5 and there are proceedings mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child depending in or before a relevant authority, the court shall give written intimation of the petition and, in due course of the outcome of the petition, to that relevant authority.

(2) Where the court receives a notice equivalent to that under paragraph (1) from a relevant authority, all proceedings in any cause mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child shall be sisted by the court until the dismissal of the proceedings in that other court under the Hague Convention; and the Deputy Principal Clerk shall give written intimation to each party of the sist and of any such dismissal.

Transfer of causes

70.8

(1) At any stage of a cause mentioned in paragraph (1) of rule 70.5, the court may, at its own instance or on the motion of any party, pronounce an interlocutor transmitting the cause to the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be.

(2) Where a cause is transferred under paragraph (1), the Deputy Principal Clerk shall–

(a) transmit the process to the appropriate officer of the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be;

(b) give written intimation of such transfer to each party; and

(3) Where a cause is transferred under paragraph (1), the question of expenses shall not be determined by the court, but shall be at the discretion of the court to which the cause is transferred.

(4) Where such a cause is transferred to the court from the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory–

(a) the Deputy Principal Clerk shall, on receipt of the order transferring the cause and any documents in the cause, give written intimation to each party of the transfer;

(b) the cause shall be deemed to have been commenced by petition; and

(c) the Deputy Principal Clerk shall, within two sitting days of the receipt of it, cause it to be put out on the By Order Roll before the Lord Ordinary.

Form of applications under this Part

70.9

(1) An application under any of the following provisions shall be made by petition:–

(a) section 15 of the Act of 1985 (application to declare a decree for custody not to be recognised);

(b) section 16 of the Act of 1985 (application for registration of custody decision); and

(2) An application under section 17(4) of the Act of 1985 (application for variation or revocation of registered decision), shall be made by note in the process of the petition for registration.

(3) An application under section 23(2) of the Act of 1985 (application in custody proceedings for declarator that removal of a child was unlawful), shall be made–

(a) by minute in the process of a cause depending before the court commenced by summons; or

(b) by note in the process of a cause depending before the court commenced by petition.

(4) In an application mentioned in this rule–

(a) the petition, minute or note, as the case may be, shall include averments in relation to–

(i) the identity of the petitioner, minuter or noter, as the case may be, and his interest in the cause;

(ii) the identity of the child and his date of birth;

(iii) the parents or guardians of the child;

(iv) the order which is required to be registered, enforced, declared unlawful, declared not recognised, varied or revoked, as the case may be;

(v) the whereabouts or suspected whereabouts of the child; and

(vi) any civil cause in dependence before any other court or authority in respect of the child, or any proceedings specified in section 20(2) of the Act of 1985¹²⁴ in dependence in or before a relevant authority;...

(b) there shall be produced with the petition, minute or note, as the case may be–

(i) a certified or authorised copy of any decision to be registered or enforced;

(ii) where a decision to be registered was given in the absence of the person against whom the decision was made or in the absence of his legal representative, a document which establishes (subject to Article 9(1)(a) of the European Convention) that that person was duly served with the document which instituted the original proceedings;

(iii) a certificate or affidavit to the effect that any decision to be registered is enforceable in accordance with the law of the State in which the decision was made; and

(iv) any other relevant document; and

(c) there shall be lodged with the petition, minute or note, as the case may be, the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition, minute or note.

Period of notice, service of causes and first hearing under this Part

70.10

(1) Subject to rule 14.6(2), the period of notice for lodging answers in a petition to which rule 70.9 applies shall be 4 days.

(2) Such a petition , and a copy of any affidavit and documentary evidence lodged with it, shall be served on–

(a) the person alleged to have brought the child into, or removed the child from, the United Kingdom, or a relevant territory, as the case may be;

(b) the person with whom the child is presumed to be in the United Kingdom or a relevant territory;

(c) the mother and father of the child if he or she is within the United Kingdom, or a relevant territory, and not otherwise a party;

(d) the chief executive of the local authority, and for the area in which the child resides and the Principal Reporter; and

(e) any other person who may have an interest in the child.

(3) The first order under rule 14.5 (first order in petitions) in a petition to which rule 70.9 applies shall specify a date within 7 days after the expiry of the period of notice for a first hearing to determine the further progress of the petition.

(4) A respondent shall lodge in process, and send a copy to the petitioner of, the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of his answers to the petition to which rule 70.9 applies at least 3 days before the first hearing fixed under paragraph (3).

(5) At the first hearing fixed under paragraph (3), the court—

(a) shall determine to what extent, if any, further evidence by affidavit is required, by whom and in regard to what matters, and by what date any such affidavit should be lodged;

(b) may, on special cause shown, direct that a particular matter should be the subject of oral evidence in lieu of further, or in addition to, affidavit evidence and by what means such evidence shall be taken; and

(c) may, if no further evidence is required, determine the petition at the first hearing or, if further evidence is required, shall give directions as to the period within which a second hearing shall be held to determine the petition.

Registration

70.11

Where the court pronounces an interlocutor ordering registration under section 16 of the Act of 1985, the Deputy Principal Clerk shall record that interlocutor in a register of decisions pronounced under that Act.

Other proceedings

70.12

(1) Where a petition is presented under section 16 (application for registration and enforcement of custody decision), or section 18 (application for enforcement of a custody decision), of the Act of 1985 and there are proceedings⅔ mentioned in section 20(2) of that Act depending or such proceedings are commenced after the petition has been presented–

(a) the petitioner shall inform the court by including averments or lodging an affidavit, as the case may be, to that effect containing a concise statement of the nature of those proceedings; and

(b) the court shall give written intimation of the petition and, in due course of the outcome of the petition, to the relevant authority.

(2) Where the court receives a notice equivalent to that under paragraph (1)(b) from the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, the Deputy Principal Clerk shall give written intimation to each party to any cause which is one mentioned in section 20(2) of the Act of 1985.

Transfers

70.13

(1) At any stage of a cause mentioned in rule 70.9, the court may, at its own instance or on the motion of any party, pronounce an interlocutor transferring the cause to the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be.

(2) Where a cause is transferred under paragraph (1), the Deputy Principal Clerk shall forthwith–

(a) transmit the process to the appropriate officer of the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be;

(b) give written intimation of such transfer to each party; and

(3) Where a cause is transferred under paragraph (1), the question of expenses shall not be determined by the court, but shall be at the discretion of the court to which the case is transferred.

(4) Where such a cause is transferred to the court from the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory–

(a) the Deputy Principal Clerk shall, on receipt of the order transferring the cause and any papers in the cause, give written intimation to the parties of the transfer;

(b) the cause shall be deemed to have been commenced by petition; and

(c) the Deputy Principal Clerk shall, within two days of the receipt of it, cause it to be put out on the By Order Roll before the Lord Ordinary.

Variation and revocation of registered decision

70.14

(1) Where a decision registered under section 16 of the Act of 1985 is varied or revoked by an authority in the Contracting State in which the decision was made, the court shall–

(a) on cancelling the registration of a decision which it has been notified has been revoked, give written intimation of that cancellation to–

(i) the person appearing to the court to have actual custody of the child;

(ii) the petitioner in the petition for registration; and

(iii) any other party to that petition; and

(b) on being notified of the variation of a decision, give written intimation to–

(i) the person having custody in fact of the child; and

(ii) any party to the petition for registration of the decision, of the variation.

(2) Any person to whom intimation of a variation has been given under paragraph (1)(b) may apply by note for the purpose of making representations before the registration is varied.

(3) An application under section 17(4) of the Act of 1985 (application to cancel or vary registration) shall be made by note.

CHAPTER 71 — REGISTRATION AND ENFORCEMENT OF PART I ORDERS UNDER THE FAMILY LAW ACT 1986

Interpretation of this Chapter

71.1

In this Chapter–

“the Act of 1986” means the Family Law Act 1986¹²⁵;

“appropriate court” means the High Court in England and Wales or the High Court in Northern Ireland or, in relation to a specified dependent territory, the corresponding court in that territory, as the case may be;

“Part I order” has the meaning assigned in section 32 of the Act of 1986;

“proper officer” means the Secretary of the principal registry of the Family Division of the High Court in England and Wales or the Master (care and protection) of the High Court in Northern Ireland or, in relation to a specified dependent territory, the corresponding officer of the appropriate court in that territory, as the case may be;

“register” means the Part I orders register kept under rule 71.2;

“specified dependent territory” means a dependent territory specified in an Order in Council made under section 43 of the Act of 1986.

Custody orders register

71.2

(1) The Deputy Principal Clerk shall maintain a register to be called the Part I orders register for the purposes of Chapter V of Part I of the Act of 1986¹²⁶.

(2) In Part I of the register there shall be recorded applications for registration of a Part I order in another part of the United Kingdom; and in Part II of the register there shall be recorded Part I orders registered for enforcement in Scotland.

(3) The register may be inspected by–

(a) the person who applied for registration; and

(b) any other person who satisfies the Deputy Principal Clerk that he has an interest to do so.

Applications for registration of custody orders in another court

71.3

(1) An application under section 27 of the Act of 1986 to register a Part I order made by the Court of Session in an appropriate court shall be made by letter to the Deputy Principal Clerk.

(2) An application under paragraph (1) shall be accompanied by–

(a) a copy of the letter of application;

(b) an affidavit by the applicant;

(d) a certified copy of the interlocutor of the Part I order;

(e) a certified copy of the interlocutor of any variation which is in force in respect of the Part I order; and

(f) any other document relevant to the application and a copy of it.

(3) An affidavit required under this rule shall set out–

(a) the name and address of the applicant and his right under the Part I order;

(b) the name and date of birth of the child in respect of whom the Part I order was made, the present whereabouts or suspected whereabouts of the child and the name of any person with whom he is alleged to be;

(d) whether the Part I order is to be registered in England and Wales, Northern Ireland or a specified dependent territory, and the court in which it is to be registered;

(e) whether the Part I order is in force;

(f) whether the Part I order is already registered and, if so, where it is registered; and

(g) details of any order known to the applicant which affects the child and is in force in the jurisdiction in which the Part I order is to be registered.

(4) Where the Deputy Principal Clerk refuses to send an application under this rule to the appropriate court on the ground that the Part I order is no longer in force, he shall give written intimation to the applicant; and the applicant shall have the right to have the application brought before the Lord Ordinary for determination.

(5) The Deputy Principal Clerk shall retain the letter of application under this rule and any documents which accompany it and which are not transmitted to the appropriate court under section 27(3) of the Act of 1986.

Transmission of applications for registration

71.4

(1) Where the Deputy Principal Clerk is satisfied that the Part I order is in force, he shall send the documents mentioned in section 27(3) of the Act of 1986 to the proper officer of the court in which the Part I order is to be registered.

(2) For the purposes of section 27(3)(b) of the Act of 1986, the prescribed particulars of any variation which is in force in respect of a Part I order shall be a certified copy of the interlocutor of any such variation.

(3) On sending an application under paragraph (1), the Deputy Principal Clerk shall make an entry in Part I of the register recording the date and particulars of the application and the Part I order.

(4) On receiving notification from a proper officer of an appropriate court that the Part I order has been registered in that court under section 27(4) of the Act of 1986, the Deputy Principal Clerk shall record the date of registration in Part I of the register.

Registration of custody orders from another court

71.5

(1) The prescribed officer under section 27(4) of the Act of 1986 shall be the Deputy Principal Clerk.

(2) Where the Deputy Principal Clerk receives a certified copy of a Part I order from a court for registration under section 27(4) of the Act of 1986, he shall enter the following particulars in Part II of the register:–

(a) the name and address of the applicant and his interest under the Part I order;

(b) a brief description of the nature of the Part I order, its date and the court which made it; and

(c) the name and whereabouts or suspected whereabouts of the child who is the subject of the Part I order, his date of birth and the date on which he will attain the age of 16 years.

(3) On registering the Part I order, the Deputy Principal Clerk shall–

(a) retain the application and the documents which accompanied it; and

(b) give written intimation to–

(i) the court from which he received the application, and

(ii) the applicant who applied for registration,

that the Part I order has been registered.

(4) Where the Deputy Principal Clerk gives written intimation to an applicant under paragraph (3), he shall state the date when the registration of the Part I order will automatically cease to have effect on the child attaining the age of 16 years.

Cancellation or variation of registered Part I orders

71.6

(1) Where the Court of Session revokes, recalls or varies a Part I order which it has made, the Deputy Principal Clerk, on being informed by the party who applied for the revocation, recall or variation that the Part I order has been registered in an appropriate court, shall–

(a) send a certified copy of the interlocutor of the revocation, recall or variation, as the case may be, to the proper officer of the court in which the Part I order is registered;

(b) record the transmission of the certified copy of that interlocutor in Part I of the register; and

(2) On receiving notification from the proper officer of the court in which the Part I order is registered that he has amended his record, the Deputy Principal Clerk shall record the fact that the amendment has been made in Part II of the register.

(3) Where the Deputy Principal Clerk receives a certified copy of an order which revokes, recalls or varies a Part I order registered in the Court of Session from an appropriate court, he shall–

(a) note the change and its date in Part II of the register; and

(b) give written intimation to–

(i) the court from which he received the certified copy of the order which revokes, recalls or varies, as the case may be, the Part I order,

(ii) the person who applied for registration of the Part I order, and

(iii) the person, if different, who applied for the revocation, recall or variation, as the case may be, of the Part I order,

that he has amended the register.

(4) An application to the Court of Session under section 28(2) of the Act of 1986 to cancel all or a part of the registration of a Part I order which it has registered shall be made by petition and shall be served on–

(a) the person who applied for registration, if he is not the petitioner; and

(b) any other interested person.

(5) Where, under section 28(2) of the Act of 1986, the court cancels all or a part of the registration of a Part I order which it has registered, the Deputy Principal Clerk shall–

(a) note the cancellation and its date in Part II of the register; and

(b) give written intimation to–

(i) the court which made the Part I order;

(ii) the person who applied for registration; and

(iii) the person, if different, who applied for cancellation of the Part I order.

Enforcement of registered custody orders in Scotland

71.7

(1) An application under section 29(1) of the Act of 1986 to enforce a Part I order registered in the Court of Session shall be made by petition.

(2) Where the petitioner in an application under paragraph (1) is not the person who applied for registration of the Part I order, the petition shall be served on that person.

Applications to sist or refuse enforcement proceedings

71.8

(1) An application under section 30(1) of the Act of 1986 to sist enforcement proceedings, or under section 31(1) or (2) of the Act of 1986 to dismiss a petition for enforcement of a Part I order, shall be made by lodging answers at any time in the process of the petition for enforcement; and the answers shall be served on every other party and, if he is not a party, the applicant for registration of the Part I order.

(2) An application under section 30(3) of the Act of 1986 (recall of sist of enforcement proceedings) shall be made by motion.

(3) Where the court pronounces an interlocutor under section 30(2) or (3) or section 31(3) of the Act of 1986, the Deputy Principal Clerk shall–

(a) make an entry in Part II of the register noting the terms of the interlocutor and the date; and

(b) give written intimation to–

(i) the person who applied for registration where he was not a party to the application under section 30(1) or section 31(1) or (2) of the Act of 1986; and

(ii) the court from which the application for registration was received,

of the terms of the interlocutor.

Orders for disclosure of information

71.9

Where the court makes an order under section 33(1) of the Act of 1986 (order on person to disclose information as to child’s whereabouts), it may ordain the person against whom the order was made to appear before it or to lodge an affidavit.

Applications for interdict under section 35(3) of the Act of 1986

71.10

An application by a person mentioned in section 35(4)(b) or (c) of the Act of 1986¹²⁷ for interdict or interim interdict under section 35(3) of the Act of 1986 (prohibition of removal of child from United Kingdom) shall be made–

(a) by note in the process of a petition depending before the court to which this Chapter applies; or

(b) where there is no such depending process, by petition.

CHAPTER 72 — Bankruptcy (Scotland) Act 2016

Interpretation of this Chapter

72.1

(1) In this Chapter, references to a section are to sections of the Bankruptcy (Scotland) Act 2016.

(2) Unless the context otherwise requires, words and expressions used in this Chapter which are also used in the Bankruptcy (Scotland) Act 2016 have the same meaning as in that Act.

First order in petitions for sequestration

72.2

(1) This rule applies to a petition containing—

(a) an appeal under section 68(4) (as read with section 68(6)(a)); or

(b) a referral for a direction under section 68(5) (as read with section 68(6)(a)).

(2) The petition must include a list of the sequestrations to which the petition relates.

(3) Where the court allows an appeal under section 68(4)—

(a) the Accountant in Bankruptcy must intimate a certified copy of the interlocutor of the court to the persons specified in section 67(2); and

(b) the court may make such orders as it thinks fit for the intimation and advertisement of its decision.

Notice of concurrent proceedings

72.3

(1) An application under section 211(5)(b) (application for a direction to remit an application under section 211(1)) is to be made by petition.

(2) A copy of the application under section 211(1) (application to sheriff to cure defects in procedure) certified by the sheriff clerk must be lodged with any application under section 211(5)(b).

(3) Where the court has determined an application under section 211(5)(b), the applicant must intimate a certified copy of the interlocutor of the court forthwith to—

(a) the sheriff clerk; and

(b) the Accountant in Bankruptcy.

(4) Where the court grants an application under section 211(5)(b), the sheriff clerk must, on receipt of the certified copy of the interlocutor of the court, transmit the application under section 211(1) and those parts of the sequestration process in the custody of the sheriff clerk, to the Deputy Principal Clerk.

(5) Where the court has determined the matters raised by the application under section211(1)—

(a) the applicant under section 211(5)(b) must intimate a certified copy of the interlocutor of the court forthwith to—

(i) the sheriff clerk; and

(ii) the Accountant in Bankruptcy; and

(b) the Deputy Principal Clerk must transmit the parts of process transmitted under paragraph (4) to the sheriff clerk.

Applications for transfer or remit of sequestration

72.4

The register of insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the Act of 1985 shall contain the information set out in Form 72.4.

Holding of sederunt book by Accountant in Bankruptcy

72.5

The Accountant in Bankruptcy shall hold the sederunt book for a period of at least 6 months from the date he receives it from the permanent trustee by virtue of section 57(1) of the Act of 1985 and–

(a) shall make it available for public inspection during office hours; and

(b) may allow such extracts to be made of entries in the Sederunt Book by such persons as he thinks fit.

Prescribed forms

72.6

(1) The register of insolvencies kept by the Accountant in Bankruptcy under section 1A(1)(b) of the Act of 1985[^f00238] shall contain the information required in Form 72.6–A.

(2) An undertaking by the interim trustee under section 2(3)(c) of the Act of 1985[^f00239] shall be in Form 72.6–B.

(3) The memorandum to be sent by a permanent trustee to the Keeper of the Register of Inhibitions and Adjudications under section 14(4) of the Act of 1985[^f00240] shall be in Form 72.6–C.

(4) A notice by a trustee under a trust deed for creditors to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Act of 1985 (registration of notice of inhibition) shall be in Form 72.6–D.

(5) A notice under paragraph 2(2) of Schedule 5 to the Act of 1985 recalling a notice registered under paragraph 2(1) of that Schedule shall be in Form 72.6–E.

CHAPTER 73 — RECTIFICATION OF DOCUMENTS

Application of this Chapter

73.1

This Chapter applies to an application under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985¹²⁸ (rectification of defectively expressed documents).

Form of applications

73.2

(1) Subject to paragraph (2), an application to which this Chapter applies shall be made by petition.

(2) An application to which this Chapter applies may be made—

(a) in an action to which Chapter 47 (commercial actions) applies, by summons or by a conclusion ancillary to other conclusions in the summons or in a counterclaim; or

(b) in any other action, by a conclusion ancillary to other conclusions in a summons or in a counterclaim.

CHAPTER 74 — COMPANIES

Application and interpretation of this Chapter

74.1

(1) This Chapter applies to causes under–

(a) the Insolvency Act 1986; and

(b) the Company Directors Disqualification Act 1986¹²⁹; and

(d) Parts 2 or 3 of the Banking Act 2009.

(e) Chapter 5 of Part 2 of the Energy Act 2011 ; and

(f) Part 4 of the Postal Services Act 2011.

(2) In this Chapter–

“the Act of 1986” means the Insolvency Act 1986;

“the Act of 2004” means the Energy Act 2004;

“the Act of 2009” means the Banking Act 2009;

“the Act of 2011” means the Energy Act 2011

“the Act of 2020” means the Corporate Insolvency and Governance Act 2020;

“the Bank Administration Rules” means the Bank Administration (Scotland) Rules 2009;

“the Bank Insolvency Rules” means the Bank Insolvency (Scotland) Rules 2009;

“the Insolvency Rules” means the Insolvency (Scotland) Rules 1986¹³⁰;

“the Insolvency (CVAA) Rules” means the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018;

“the Insolvency (RWU) Rules” means the Insolvency (Scotland) (Receivership and Winding up) Rules 2018;

“the Investment Bank Regulations” means the Investment Bank Special Administration Regulations 2011;

“the Investment Bank Rules” means the Investment Bank Special Administration (Scotland) Rules 2011;

“the Energy Administration Rules” means the Energy Administration (Scotland) Rules 2006;

“the 2013 Rules” means the Energy Supply Company Administration (Scotland) Rules 2013

“Council Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20th May 2015 on insolvency proceedings, as amended from time to time.

“centre of main interests” has the same meaning as in the Council Regulation;

“establishment” has the same meaning as in Article 2(10) of the Council Regulation;

“Member State” means a Member State of the European Union that has adopted the Council Regulation;

“non GB company” shall have the meaning assigned in section 171 of the Act of 2004;

the Postal Act” means the Postal Services Act 2011;

“the Postal Administration Rules” means the Postal Administration (Scotland) Rules 2016;

“registered office” means–the place specified in the statement of the company delivered to the register of companies under section 9 of the Companies Act 2006 as the intended place of its registered office on incorporation, orwhere notice has been given by the company to the registrar of companies under section 87 of the Companies Act 2006 of a change of registered office, the place specified in the last such notice.

(3) Unless the context otherwise requires, words and expressions used in this Chapter which are also used in the Act of 1986, Chapter 3 of Part 3 of the Act of 2004, Parts 2 or 3 of the Act of 2009 Chapter 5 of Part 2 of the Act of 2011 , Part 4 of the Postal Act, the Insolvency Rules , the Insolvency (CVAA) Rules, the Insolvency (RWU) Rules, the Bank Insolvency Rules, the Bank Administration Rules ... the Energy Administration Rules , the 2013 Rules or the Postal Administration Rules have the same meaning as in those Acts or Rules, as the case may be.

Proceedings before insolvency judge

74.2

All proceedings in the Outer House in a cause under or by virtue of the Act of 1986, the Company Directors Disqualification Act 1986 , Chapter 3 of Part 3 of the Act of 2004 or Parts 2 , 3 of the Act of 2009, or Part4 of the Postal Act shall be brought before a judge of the court nominated by the Lord President as the insolvency judge or, where the insolvency judge is not available, any other judge of the court (including the vacation judge): and “insolvency judge” shall be construed accordingly.

Notices and reports, etc., sent to the court

74.3

Where, under the Act of 1986, the Act of 2004, the Act of 2009, the Act of 2011 the Postal Act, the Insolvency Rules , the Insolvency (CVAA) Rules, the Insolvency (RWU) Rules, the Bank Insolvency Rules, the Bank Administration Rules ... the Energy Administration Rules , the 2013 Rules or the Postal Administration Rules –

(a) notice of a fact is to be given to the court,

(b) a report is to be made, or sent, to the court, or

it shall be sent to the Deputy Principal Clerk who shall cause it to be lodged in the process to which it relates.

Lodging of nominee’s report (company not in liquidation etc.)

74.4

(1) This rule applies where the company is not being wound up by the court and is not in administration.

(2) A report of a nominee submitted to the court under section 2(2) of the Act of 1986 (procedure where nominee is not the liquidator or administrator) shall be–

(a) lodged, with a covering letter, in the Petition Department;

(b) marked by the clerk of session receiving it with the date on which it is received; and

(c) placed before the insolvency judge for consideration of any direction which he may make under section 3(1) of that Act (which relates to the summoning of meetings).

(3) An application by a nominee to extend the time within which he may submit his report under section 2(2) of the Act of 1986 shall be made by letter addressed to the Deputy Principal Clerk who shall–

(a) place the letter before the insolvency judge for determination;

(b) intimate that determination by a written reply; and

Lodging of nominee’s report (company in liquidation etc.)

74.5

(1) This rule applies where the company is being wound up by the court or is in administration.

(2) In this rule, “process” means the process of the petition under section 9¹³¹ (petition for administration order), or section 124¹³² (petition to wind up a company), of the Act of 1986, as the case may be.

(3) A report of a nominee submitted to the court under section 2(2) of the Act of 1986 (procedure where nominee is not the liquidator or administrator) shall be–

(a) lodged in process; and

(b) placed before the insolvency judge for consideration of any direction which he may make under section 3(1) of that Act.

(4) An application by a nominee to extend the time within which he may submit his report under section 2(2) of the Act of 1986 shall be made by letter addressed to the Deputy Principal Clerk who shall–

(a) place the letter before the insolvency judge for determination;

(b) intimate that determination by a written reply; and

Inspection of nominee’s report

74.6

A person who states in a letter addressed to the Deputy Principal Clerk that he is a creditor, member or director of the company or his agent, may, on payment of the appropriate fee, inspect the nominee’s report lodged under rule 74.4(2) (company not in liquidation etc.) 74.5(3) (company in liquidation etc.), as the case may be.

Report of meetings to approve arrangement

74.7

The report of the result of a meeting to be sent to the court under section 4(6) and a decision of the company’s creditors to be reported to the court under section 4(6A)(a) of the Act of 1986 shall be sent to the Deputy Principal Clerk who shall lodge it–

(a) in a case to which rule 74.4 (lodging of nominee’s report (company not in liquidation etc.)) applies, with the nominee’s report lodged under that rule; or

(b) in a case to which rule 74.5 (lodging of nominee’s report (company in liquidation etc.)) applies, in process as defined by paragraph (2) of that rule.

Abstracts of supervisor’s receipts and payments and notices of completion of arrangement

74.8

A notice and copy of the supervisor’s report to be lodged with the court under rule 2.43(3) of the Insolvency (CVAA) Rules (termination or full implementation of CVA) must be sent to the Deputy Principal Clerk who must lodge it—

(a) in a case to which rule 74.4 (lodging of nominee’s report (company not in liquidation etc.)) applies, with the nominee’s report lodged under that rule; or

(b) in a case to which rule 74.5 (lodging of nominee’s report (company in liquidation etc.)) applies, in process as defined by paragraph (2) of that rule.

Form of other applications

74.9

(1) An application to which this rule applies shall be made–

(a) where the company is not being wound up by the court and is not in administration, by petition; or

(b) where the company is being wound up by the court or is in administration, by note in the process to which it relates.

(1A) In the case of a bank, an application to which this rule applies shall be made–

(a) where the bank is not subject to a bank insolvency order and is not in bank administration, by petition; or

(b) where the bank is subject to a bank insolvency order by the court or is in bank administration, by note in the process to which it relates.

(2) This rule applies to an application under–

(a) section 2(4) of the Act of 1986 (for the replacement of a nominee);

(b) section 6 of that Act (to challenge a decision made in relation to an arrangement);

(d) section 7(4)(a) of that Act (by a supervisor for directions);

(e) section 7(5) of that Act (for the appointment of a supervisor);

(f) rule 2.40(10) of the Insolvency (CVAA) Rules (to dispense with delivery of reports or summaries);

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h) any other provision in the Act of 1986 or the Insolvency (CVAA) Rules relating to company voluntary arrangements not mentioned in this Part ; or

(i) any provision in the Act of 1986, as applied by the Act of 2009, relating to voluntary arrangements.

Form of petition for administration order

74.10

(1) In this Part, “the petition” means a petition under section 9 of, or section 8 of and Schedule B1 to, the Act of 1986 (petition for administration order) , or section 70 of the Postal Act (applications for postal administration orders), or section 156 of the Act of 2004 (petition for energy administration order).

(2) The petition shall include averments in relation to–

(a) the petitioner and the capacity in which he presents the petition, if other than the company;

(b) whether it is believed that the company is, or is likely to become, unable to pay its debts and the grounds of that belief;

(i) any of the purposes specified in section 8(3) of the Act of 1986; or

(ii) an objective specified in paragraph 3 of Schedule B1 to the Act of 1986;

(d) the company’s financial position specifying, so far as known, assets and liabilities, including contingent and prospective liabilities;

(e) any security known or believed to be held by creditors of the company, whether in any case the security confers power on the holder to appoint a receiver or an administrator, and whether a receiver or an administrator, as the case may be, has been appointed;

(f) so far as known to the petitioner, whether any steps have been taken for the winding up of the company;

(g) other matters which, in the opinion of the petitioner, will assist the court in deciding whether to grant an order in respect of an administration or an energy administration or a postal administration, as the case may be;

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) the name and address of the person proposed to be appointed, and his qualification to act, as administrator or energy administrator or postal administrator, as the case may be ; and

(j) in the case of a petition under the Act of 1986, averments stating, in so far as it is within the petitioner’s knowledge—

(i) whether or not the centre of main interests of the company is situated within the United Kingdom or in a Member State;

(ii) where the centre of main interests of the company is situated in a Member State, whether or not the company possesses an establishment in the United Kingdom;

(iii) whether there are insolvency proceedings elsewhere in respect of the company;

(k) whether the Secretary of State has certified the case as one in which he considers it would be appropriate for him to petition under section 124A of the Act of 1986 (petition for winding up on grounds of public interest);

(l) so far as known to the petitioner in a petition for an energy administration order or a postal administration order, as the case may be, whether any steps have been taken for an administration order under Schedule B1 to the Act of 1986;

(m) whether a protected energy company in a petition for an energy administration order is a non GB company.

(n) whether a universal service provider (within the meaning of section 65(1) of the Postal Act) in a petition for a postal administration order is a foreign company.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notice of petition

74.11

Where–

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) the petition and a notice are to be served on a person mentioned in section 156(2)(a) to (c) of the Act of 2004 (notice of application for energy administration order) ... rule 5(1) of the Energy Administration Rules or rule6(1) of the 2013 Rules ; or

(d) the petition and a notice are to be served on a person mentioned in section 70(2)(a) to (c) of the Postal Act (applications for postal administration orders) or Rule 7 of the Postal Administration (Scotland) Rules.

it shall be sufficient for the petitioner, where such notice and service is to be executed by post, to enclose the statutory notice and a copy of the petition in one envelope and to certify the giving of such notice and the execution of such service by one certificate.

Report of proposals of administrator

74.12

(1) A report of the meeting to approve the proposals of the administrator to be sent to the court under section 24(4) of the Act of 1986 shall be sent to the Deputy Principal Clerk of Session, who shall–

(a) cause it to be lodged in the process of the petition to which it relates; and

(b) give written intimation to the parties of the receipt and lodging of the report.

(2) Where a report under section 24(4) of the Act of 1986 discloses that the meeting has declined to approve the proposals of the administrator, the Keeper of the Rolls shall put the cause out on the By Order Roll for determination by the insolvency judge for any order he may make under section 24(5) of that Act.

Abstracts of administrator’s receipts and payments

74.13

(1) Paragraph (2) shall apply where a report under paragraphs 53(2) or 54(6) of Schedule B1 to the Act of 1986 discloses a failure to approve, or to approve a revision of, an administrator’s proposals.

(2) The Deputy Principal Clerk shall fix a hearing for determination by the insolvency judge of any order that may be made under paragraph 55(2) of Schedule B1 to the Act of 1986.

Extension of time for accounts of receipts and payments

74.14

(1) The time and date of lodging of a notice or document relating to an administration under the Act of 1986 or the Insolvency (CVAA) Rules, or an energy administration under the Act of 2004 or the Energy Administration Rules or a postal administration under the Postal Act or the Postal Administration Rules, shall be noted by the Deputy Principal Clerk upon the notice or document.

(2) Subject to any provision in the Insolvency (CVAA) Rules or the Energy Administration Rules or the Postal Administration Rules, as the case may be–

(a) where the time of lodging of a notice or document cannot be ascertained by the Deputy Principal Clerk, the notice or document shall be deemed to be lodged at 10 a.m. on the date of lodging; and

(b) where a notice or document under paragraph (1) is delivered on any day other than a business day, the date of lodging shall be the first business day after such delivery.

Form of certain applications and appeals

74.15

An application or appeal under any provision of the Act of 1986, the Insolvency (CVAA) Rules, the Act of 2004 , the Postal Act or the Energy Administration Rules or the Postal Administration Rules during an administration, energy administration or postal administration, as the case may be, shall be–

(a) where no previous application or appeal has been made, by petition; or

(b) where a petition for an order in respect of an administration, or energy administration or postal administration, as the case may be, has been lodged, by note in the process of that petition.

Interpretation of this Part

74.16

In this Part, “the petition” means a petition under section 54(1) of the Act of 1986 (petition to appoint a receiver).

Petition to appoint a receiver

74.17

The petition shall include averments in relation to–

(a) any floating charge and the property over which it is secured;

(b) so far as known to the petitioner, whether any application for an order in respect of an administration has been made , or an administrator has been appointed. in respect of the company;

(c) other matters which, in the opinion of the petitioner, will assist the court in deciding whether to appoint a receiver; and

(d) the name and address of the person proposed to be appointed, and his qulification to act, as receiver.

Intimation, service and advertisement under this Part

74.18

(1) Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of the petition shall include a requirement–

(a) to serve the petition–

(i) on the company; and

(ii) where an application for an administration order has been presented, on that applicant and any respondent to that application; and

(b) to advertise the petition forthwith–

(i) once in the Edinburgh Gazette; and

(ii) once in one or more of such newspapers as the court shall direct.

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the petition shall be 8 days.

(3) An advertisement under paragraph (1) shall include–

(a) the name and address of the petitioner;

(b) the name and address of the agent for the petitioner;

(d) the nature of the order sought;

(e) the period of notice for lodging answers; and

(f) a statement that any person who intends to appear in the petition must lodge answers within the period of notice.

Form of other applications and appeals

74.19

(1) An application under–

(a) section 61(1) of the Act of 1986 (by a receiver for authority to dispose of property or an interest in property),

(b) section 62 of that Act¹³³ (for removal of a receiver),

(d) section 69(1) of that Act (to enforce the receiver’s duty to make returns etc.), or

(e) any other provision of the Act of 1986 or the Insolvency (RWU) Rules relating to receivers not mentioned in this Part,

shall, where the court has appointed the receiver, be made by note or, in any other case, by petition.

(2) An appeal against a decision of a receiver as to expenses of making a statement of affairs and statutory declaration or a statement of concurrence under rule 2.10(2) of the Insolvency (RWU) Rules (statement of affairs: expenses) shall, where the receiver was appointed by the court, be made by note or, in any other case, by petition.

(3) An application by a receiver–

(a) under section 67(1) or (2) of the Act of 1986 (to extend the time for sending a report),

(b) under rule 2.16(3) of the Insolvency (RWU) Rules (to extend the time for sending a summary of receipts and payments),

shall, where the court has appointed the receiver, be made by motion or, in any other case, by petition.

Interpretation of this Part

74.20

In this Part, “the petition” means a petition under section 124 of the Act of 1986 (petition to wind up a company).

Petition to wind up a company

74.21

(1) The petition shall include averments in relation to–

(a) the petitioner, if other than the company, and his title to present the petition;

(b) in respect of the company–

(i) its current and any previous registered name;

(ii) the address of its registered office, and any previous such address within 6 months immediately before the presentation of the petition so far as known to the petitioner;

(iii) a statement of the nature of its business and objects, the amount of its capital (nominal and issued) indicating what part is called up, paid up or credited as paid up, and the amount of the assets of the company so far as known to the petitioner;

(iiia) confirmation that it is not the subject of a moratorium;

(iv) whether or not the centre of main interests of the company is situated within the United Kingdom or in a Member State;

(v) where the centre of main interests of the company is situated in a Member State, whether or not the company possesses an establishment in the United Kingdom;

(c) whether, to the knowledge of the petitioner, a receiver has been appointed in respect of any part of the property of the company or a liquidator has been appointed for the voluntary winding up of the company;

(d) the grounds on which the petition proceeds; and

(e) the name and address of the person proposed to be appointed, and his qualification to act, as interim liquidator.

(f) whether there are insolvency proceedings elsewhere in respect of the company ....

Intimation, service and advertisement under this Part

74.22

(A1) An application for an order under paragraph 20(3) of schedule 10 of the Act of 2020 (application to disapply suspension of court rules that require or permit inspection of petition or proceedings) must be made by note in the process of the petition.

(1) Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of the petition shall include a requirement–

(a) to serve the petition–

(i) where the petitioner is not the company, on the company;

(ii) where the company is being wound up voluntarily and a liquidator has been appointed, on the liquidator; and

(iii) where a receiver or administrator has been appointed, on the receiver or administrator, as the case may be;

(b) where the company is an authorised institution or former authorised institution within the meaning assigned in section 106(1) of the Banking Act 1987¹³⁴ and the petitioner is not the Bank of England, to serve the petition on the Bank of England; and

(i) once in the Edinburgh Gazette; and

(ii) once in one or more of such newspapers as the court shall direct.

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the petition shall be 8 days.

(3) An advertisement under paragraph (1) shall include–

(a) the name and address of the petitioner and, where the petitioner is the company, its registered office;

(b) the name and address of the agent for the petitioner;

(d) the nature of the order sought;

(e) where a provisional liquidator has been appointed by the court, his name, address and the date of his appointment;

(f) the period of notice for lodging answers; and

(g) a statement that any person who intends to appear in the petition must lodge answers within the period of notice.

Remits from one court to another

74.23

(1) An application under section 120(3)(a)(i) of the Act of 1986¹³⁵ (application for remit of petition to a sheriff court) shall be made by motion.

(2) An application under–

(a) section 120(3)(a)(ii) of the Act of 1986 (application for remit of petition from a sheriff court to the court), or

(b) section 120(3)(b) of that Act (application for remit of petition from one sheriff court to another),

shall be made by petition.

Substitution of creditor or contributory for petitioner

74.24

(1) Where a petitioner in the petition–

(a) is subsequently found not entitled to present the petition,

(b) fails to make intimation, service and advertisement as directed by the court,

(d) fails to appear when the petition is called for hearing, or

(e) appears, but does not move for an order in terms of the prayer of the petition,

the court may, on such terms as it thinks fit, sist as petitioner in place of the original petitioner any creditor or contributory who, in the opinion of the court, is entitled to present the petition.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) An application by a creditor or a contributory to be sisted under paragraph (1)–

(a) may be made at any time before the petition is dismissed or refused, and

(b) shall be made by note;

and, if necessary, the court may continue the petition for a specified period to allow a note to be presented.

Provisional liquidator

74.25

(1) An appplication to appoint a provisional liquidator under section 135 of the Act of 1986 may be made–

(a) by the petitioner, in the prayer of the petition or, if made after the petition has been presented, by note; or

(b) by a creditor or contributory of the company, the company or its directors, the Secretary of State ... or a person entitled under any enactement to present a petition, by note.

(2) The application mentioned in paragraph (1) shall include averments in relation to–

(a) the grounds for the appointment of the provisional liquidator;

(b) the name and address of the person proposed to be appointed, and his qualification to act, as provisional liquidator; and

(c) whether, to the knowledge of the applicant, an administrator has been appointed to the company or a receiver has been appointed in respect of any part of its property or a liquidator has been appointed voluntarily to wind it up.

(3) Where the court decides to appoint a provisional liquidator–

(a) it shall pronounce an interlocutor making the appointment and specifying the functions to be carried out by him in relation to the affairs of the company; and

(b) it must direct the Deputy Principal Clerk to send forthwith a certified copy of such interlocutor to the person appointed.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) An application for the discharge of a provisional liquidator shall be made by note.

Appointment of a liquidator

74.26

(1) Where the court pronounces an interlocutor appointing a liquidator–

(a) the Deputy Principal Clerk shall send a certified copy of that interlocutor to the liquidator;

(b) the court may, for the purposes of rules 4.22(4)(b), 5.21(4)(b)(ii) and 5.26(4)(b)(ii) of the Insolvency (RWU) Rules (liquidator to give notice of appointment), give such direction as it thinks fit as to advertisement of such appointment.

(2) An application to appoint a liquidator under section 139(4) of the Act of 1986 shall be made by note.

Applications and appeals in relation to a statement of affairs or accounts

74.27

(1) An application under section 131(5) of the Act of 1986 for–

(a) release from an obligation imposed under section 131(1) or (2) of that Act, or

(b) an extension of time for the submission of a statement of affairs,

shall be made by note.

(2) A note under paragraph (1) shall be served on the liquidator or provisi onal liquidator, as the case may be, who may lodge–

(a) answers to the note; or

(b) a report on any matters which he considers should be drawn to the attention of the court.

(3) Where the liquidator or provisional liquidator lodges a report under paragraph (2), he shall forthwith send a copy of it to the noter.

(4) Where the liquidator or the provisional liquidator does not appear at any hearing on the note, a certified copy of the interlocutor disposing of the note shall be sent to him forthwith by the noter.

(5) An appeal under—

(a) rule 5.15(6) of the Insolvency (RWU) Rules (appeal against refusal by liquidator of allowances towards expenses of preparing statement of affairs);

(b) rule 5.15(6) as applied by rule 5.17(4) of the Insolvency (RWU) Rules (appeal against refusal by liquidator of allowances towards expenses of preparing accounts),

must be made by note.

(6) A note under paragraph (5) must be served on the liquidator or provisional liquidator, as the case may be.

Appeals against adjudication of claims

74.28

(1) An appeal under rule 7.19(5) of the Insolvency (RWU) Rules (adjudication of claims) by a creditor or any member or contributory of the company against a decision of the liquidator shall be made by note in process or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(2) A note under paragarph (1) shall be served on the liquidator.

(3) On such a note or petition being served on him, the liquidator shall send the claim in question, and a copy of his adjudication, forthwith to the Deputy Principal Clerk who shall cause them to be lodged in process.

(4) After the note or petition has been disposed of, the Deputy Principal Clerk shall return the claim and the adjudication to the liquidator with a copy of the interlocutor disposing of the note.

Removal of liquidator

74.29

(1) An application by a creditor of the company for an order—

(a) under section 171(3)(b) of the Act of 1986 (order directing the summoning of a meeting to replace the liquidator);

(b) under section 171(3A)(b) of that Act (order directing the instigation of qualifying decision procedure); or

must be made by note.

(2) Where the court orders the removal of a liquidator, the Deputy Principal Clerk must send two copies of the interlocutor to the former liquidator.

Application in relation to remuneration of liquidator

74.30

(1) An appeal by a liquidator, any creditor or any contributory under rule 7.12(1) of the Insolvency (RWU) Rules (appeal against fixing of outlays and remuneration: creditors’ voluntary winding up and winding up by the court) must be made by note or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(2) An application—

(a) by a liquidator under rule 7.14 of the Insolvency (RWU) Rules (recourse to the court: creditors’ voluntary winding up and winding up by the court); or

(b) by a creditor of the company under rule 7.15 of the Insolvency (RWU) Rules (creditors’ claim that remuneration is excessive: creditors’ voluntary winding up and winding up by the court),

must be made by note or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(3) A note under—

(a) paragraph (1) where the appeal is by a creditor or contributory;

(b) paragraph (2)(b),

must be served on the liquidator.

Application to appoint a special manager

74.31

(1) An application under section 177 of the Act of 1986 (application for the appointment of a special manager) shall be made by note.

(2) A bond of caution together with a certificate as to the adequacy of the caution by the noter under rule 3.19(4), 4.38(4) or 5.42(4) of the Insolvency (RWU) Rules (caution) must be sent to the Petition Department by the noter.

(3) After the Deputy Principal Clerk has satisfied himself as to the sufficiency of caution under rule 33.7(1) of these Rules, the clerk of session shall issue to the person appointed to be special manager a certified copy of the interlocutor appointing him.

(4) A special manager may, before the expiry of the period for finding caution, apply to the insolvency judge for an extension of that period.

Other applications

74.32

(1) An application under the Act of 1986 or any subordinate legislation made under that Act, or Part VII of the Companies Act 1989, in relation to a winding up by the court not mentioned in this Part shall–

(a) if made by a party to the petition, be made by motion; or

(b) in any other case, be made by note.

(2) At the hearing of a motion under paragraph (1)(a), the court may order that the application be made by note; and, in such a case, shall make an order for the lodging of answers to the note in process within such period as it thinks fit.

Applications in relation to disqalification orders or undertakings

74.33

An application–

(a) under section 3(2) of the Company Directors Disqualification Act 1986 (for disqualification for persistent breaches of companies legislation);

(aa) under section 5A of that Act (for disqualification for certain convictions abroad);

(b) under section 6(1) of that Act (to disqualify unfit directors of insolvent companies);

(ca) under section 8A of that Act (variation or cessation of disqualification undertaking),

(cb) under section 8ZB of that Act (for disqualification of person instructing unfit director of insolvent company);

(cc) under section 8ZD of that Act (for order disqualifying person instructing unfit director: other cases);

(d) under section 11(1) of that Act (for leave by an undischarged bankrupt to be concerned in a company),

(da) under section 15A of that Act (for compensation orders);

(db) under section 15C of that Act (for variation and revocation of compensation undertakings);

(e) for leave under that Act; or

(f) by the Secretary of State under “rule 3(2) of the Insolvent Companies (Reports on Conduct of Directors) (Scotland) Rules 2016 (application for order directing compliance with requirements to furnish information etc.),

shall be made by petition.

Intimation, service and advertisement under this Part

74.34

(1) Rule 74.22, except paragraphs (1)(c) and (2) of that rule, shall apply to the intimation, service and advertisement of a petition referred to in rule 74.33 (applications in relation to disqualification orders) as it applies to a petition under that rule.

(2) A petition presented under rule 74.33 shall be intimated—

(a) to the Secretary of State for Business, Enterprise and Regulatory Reform; or

(b) where a petition is presented under rule 74.33(ca) and the disqualification undertaking was given under section 9B of the Company Directors Disqualification Act 1986 (competition undertaking), to the Office of Fair Trading or any specified regulator which has accepted the undertaking, as the case may be;

unless the petition is presented by that person or body.

CHAPTER 75 — APPLICATIONS RELATING TO FINANCIAL SERVICES

Application and interpretation of this Chapter

75.1

(1) This Part applies to an application, under the Financial Services Act 1986¹³⁷, mentioned in rule 75.2.

(2) In this Part–

“the Act of 1986” means the Financial Services Act 1986;

“designated agency” has the meaning assigned in section 114(3) of the Act of 1986.

Form of applications under the Act of 1986

75.2

(1) An application under any of the following provisions of the Act of 1986 shall be made by petition:–

(a) sections 6, 61, 71(1), 91(4), 104(4), 131(8) and 184(8) (applications by Secretary of State or designated agency for interdict or restitution);

(b) sections 12, 20, 37(8) and 39(8) (applications by Secretary of State or designated agency for compliance orders);

(c) section 93 (applications by Secretary of State or designated agency to remove or replace a manager or trustee or to wind up a unit trust scheme); and

(d) Schedule 11¹³⁸–

(i) paragraph 6(1) (applications by the Friendly Societies Commission for compliance orders);

(ii) paragraph 7(4) (applications by recognised self regulating organisations to set aside a direction);

(iii) paragraph 22 (applications by the Friendly Societies Commission for interdict or to remedy a contravention); and

(iv) paragraph 23(1) so far as it modifies section 61 as applied by section 71(1) (applications by the Friendly Societies Commission for interdict or restitution).

(2) Certification by inspectors or the court by virtue of section 94(3)¹³⁹, or under section 178(1)¹⁴⁰, of the Act of 1986 shall be made by petition.

Intimation and service

75.3

An order under any of the following provisions of the Act of 1986 shall only be made following intimation and service of the petition to the person against whom the order is to be made:–

(a) section 6 (interdict and restitution orders);

(b) section 61 (interdict and restitution orders);

(d) section 91(4) (orders in respect of contravention of a direction);

(e) section 104(4) (orders in respect of contravention of a requirement);

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